How Do I Infringe Thee? Let Me Count the Ways

Bob Zeidman, author of The Software IP Detective's Handbook: Measurement, Comparison, and Infringement Detection, describes the parts of a patent, the types of patents, and the different ways that patents can be infringed. This understanding is necessary in today’s knowledge-based world for inventors and business managers, whether you plan to license your inventions to others or avoid infringing others’ inventions.

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First, let me apologize to Elizabeth Barrett Browning, to poetry lovers, to writers, to readers, and just about everyone for the title of this article. But maybe it got your attention? I want to talk about the many ways that patent infringement can occur. It may surprise many of you to learn some ways that patents can be infringed. Understanding this will help you write better patents for your products, avoid infringement of others’ patents, and determine who is infringing on your own patents.

Parts of a Patent

First, let me start off with the basic parts of a patent. A patent can de divided into the following sections:

Abstract. This is a one-paragraph description of the invention that’s being patented.

Drawings. These are carefully labeled figures that are used to illustrate important concepts of the invention and that are described in the detailed description.

Background of the invention. This section describes the field of the invention, other inventions, or publications that predate this invention (“prior art”), and inventions related to this invention. This section typically explains what’s so great about the invention and why everyone will want it.

Summary of the invention. This is a paragraph to a page in length that describes the invention. Though this section isn’t legally required by law, it’s a part of almost every patent.

Brief description of the drawings. One or two sentences are given to briefly describe each drawing.

Detailed description. This section explains the invention as completely as possible, referencing the drawings. This section describes what is called the “embodiment” of the invention that differentiates it from existing inventions. The description must explain the best way the inventor knows of implementing the invention, and it must be detailed enough to allow “one of ordinary skill in the art” to produce it.

Claims. This is the essence of the invention. Each claim is a single sentence, though it’s usually a very long sentence broken into multiple parts, that describes the invention in as precise wording as possible.

Claims are the most important part of any patent. Patents typically contain anywhere from five to 30 claims. Each claim is a single sentence, and each describes an important aspect of the invention. Whether another product infringes on your patent ultimately comes down to these claims.

If you don’t finish this article and stop here, at least remember this important piece of advice: never ever ever file a patent that you’ve written yourself without having a qualified patent attorney or patent agent review the claims. I’ve seen patents for ingenious devices that were worthless because of one misplaced word in a patent claim. Other patents had no value because the claims were so narrow that no one infringed or avoiding infringement required some insignificant change to the invention.